Townships respond in Act 13 case

This Range Resources natural gas well at the O’Donnell Pad on Buffalo Road North in Hopewell Township is one of many Marcellus Shale wells in Washington County.
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Local townships are asking the Pennsylvania Supreme Court to not reconsider its opinion that struck down key provisions of the state’s Act 13 case.

Seven municipalities, including Robinson, Mt. Pleasant, Cecil and Peters townships, formally responded Wednesday to a request made by the state Department of Environmental Protection and Public Utility Commission to rehear the case. Both the PUC and DEP argued the court should consider more evidence after it ruled in December that parts of Act 13 were unconstitutional.

The municipalities countered state agencies had no compelling reason for rearguing Act 13, which governs oil and gas drilling in Pennsylvania. They also argued in the 15-page document the court’s decision was never based on factual evidence because it was purely a legal determination.

“From the beginning, the question was one of law,” said David Ball, a plaintiff in the case as both an individual and councilman for Peters Township. “We challenged the law as being unconstitutional, and the court ruled that segments of the law were unconstitutional. I don’t know how much clearer it really gets than that.”

Municipalities submitted about 150 evidence exhibits throughout the case hearings, but those facts were never disputed by the agencies, Ball said. In addition, the agencies did not submit any of their own documents supporting their case. Ball and others argued that while those supplementary materials were provided to the court, that evidence was not the basis from which the court reached its opinion.

“Neither the Commonwealth Court nor this court required factual findings to conclude that statutory language allowing heavy industrial activity next to homes, schools and sensitive natural resources without consideration of local conditions and preventing municipalities from ameliorating adverse impacts violated the people’s inherent rights as guaranteed under the Pennsylvania Constitution,” read the response.

In the document, municipalities also pointed to the fact that Attorney General Kathleen Kane never sought reargument of the case, even though it is her duty to defend the constitutionality of all laws passed by the General Assembly. The appellees wrote that, “By contrast, the DEP is charged with protecting this commonwealth’s environment, yet rather than defend its … fiduciary duties, agencies seek to undermine their constitutional role.”

The municipalities said the Supreme Court, as the highest court in the state, needs to put its foot down.

“Our contention … is that the court has ruled, and there needs to be finality in a court decision,” Ball said. “You can’t just keep rehearing, rehearing, rehearing.”

In its opinion, the court also remanded several provisions to Commonwealth Court for consideration, including the severability of Act 13, or whether the unchallenged provisions of the law can hold up without the remainder. Attorney John Smith, one of the appellees in the case, said the Supreme Court needs to make a decision on whether it will rehear the case before those provisions can be considered by the lower court.

“We are hoping for a quick determination, because the court has remanded a number of important issues back to the Commonwealth Court that can’t be decided until the (Supreme Court) disposes of this request,” Smith said.

Smith said he was not immediately aware of any cases in which the Supreme Court reconsidered its opinion – especially one that stretches over 160 pages.

“It’s a very unusual request, and it’s even more extraordinary if the court would entertain it,” Smith said.

Ball said he believes this is a last-ditch effort by the administration after previous attempts to preserve the law failed.

“The PUC and DEP, to me, this is a Hail Mary. They’re desperate,” Ball said. “They need to appease the people in the gas industry, apparently. They’re grasping at straws.”